Ram Charan Mitra.

The law of joint property and partition in British India online

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stance, so far as the N.-W. P. is concerned, and was rendered
necessary by the more restricted definition of sir adopted in the
present Act.

In the N.-W. Provinces, the former holder of sir became, on its
being included in the mahal of another co-sharer, its occupancy
tenant provided he continued to cultivate it after the partition.
Now in both provinces such a holder becomes under similar circum-
stances its ex-proprietary tenant. But he must continue to culti-



APPENDIX.



XXXV 11



vate it after partition. Such rights arise when the Collector has
in makin,^ a partition included the sir of one co-sharer in the
mahal of another, presumably under the provisions of sections 123
and 125, and of, perhaps, section 117, when the 5(> in the possession
of a co-sharer exceeds the value of his share in the undivided
mahal. Exproprietary rights arise irrespective of the question of
the co-sharer's consent in the inclusion of his iir in the mahal of
another. An agreement between co-sharers that no rights of
occupancy should arise on such inclusion is against public policy
and void under s. 23 Contract Act.^ When the parties elect to
make the partition themselves, and the 5/r held by one is included
in the rnahal of another co-sharer, the former becomes ipso facto
the exproprietary tenant of the land under the latter, without the
necessity of continuing to cultivate it after the partition. An agree-
ment that such a tenancy should not arise under such circum-
stances is inoperative.- It was also held in the case last cited
that s. 125 of Act XIX. of 1873 (s. 123 of the present Act) did
not apply to private partitions.

When partition is made by an arbitrator who includes the sir
of one co-sharer in the mahal of another, no exproprietary rights
arise.^

Exproprietary rights arise over land held as sir as defined by
the Act and land which a co-sharer has cultivated for twelve years
prior to the date of the partition.

It is the duty of the Collector to fix the rent of the land over
which exproprietary rights have arisen.* The circular letter

No. TT dated the 21st of February, 1901 issued by the Board

2-708, ^ ^ ^

of Revenue impresses this duty very clearly. It points out that the
rent should be fixed in a formal proceeding, and the record should
show the manner in which the amount of the rent has been deter-
mined ; and enjoins Collector to see, before confirming the par-
tition, that this provision of the law has been complied with.

128. When in the course of partition the holding
Division of tenant's of any tenant is divided, the Collector
holding. shall distribute the rent of the holding

over the parts divided off.

This is new.



Allotment
of land.



Division of
tenant's
holding.



' Inder v, Khushi, 6 A.W.N. SS,Hanuman v. Kariman, 8 A.W. N. 185.
» Kaski Pershad v. Kedar Nath 20 All 219, 18 A.W. N. 147.

• Tuhhi V. B/iugwan, 3 All 818 l;A. W. N. 81.

* L.i/a R^m V Rojp Kishore, B. R. 2 of 1 898.



of revenue.



XXXVlll APPENDIX.

129. When a perfect partition has been disallowed

When perfect par- Under section 109, 1 10, or 124, the

tition has been dis- Collector mav, if the applicant for

allowed, imperfect . " . ^

partition may be partition SO desires, make an imperfect
S"^^"'^^- partition without a fresh application.

This is new ; no fresh application is necessary.

Distribution 130. In all cases, whether partition has been made

Distribution of re- by arbitrators or otherwise the revenue

venue on partition, of the iiiahal shall be distributed by

the Collector over the several portions into which the

mahal is divided.

This corresponds to s. 128 of Act XIX. of 1873 and s. 89 of
Act XVII. of 1876. The duty is obligatory. Jawahir Lull v.
Rachpal, B. R. (1885-87) p. 47.

Rules made by the Board {Circular 27 — II.)

Rule 30. — In distributing the revenue of the mahal over the
mahals or pattis formed by the partition, the Court shall, as far
as possible, fix the revenue of every mahal or patti so formed in full
rupees.

The duty to redistribute and determine the amount of the
revenue payable by each of the newly formed mahal is imper-
ative.^

131. A partition shall not be complete until the
Confirmation of Collector has passed an order confirm-

partition. jng it.

When the partition has been confirmed, the Col-
lector shall issue a proclamation thereof, and the
partition shall take effect from the fist day of July
next following the date of such proclamation.

This corresponds to s. 131 of Act XIX. of 1873 and s. 91 of
Act XVII. of 1876. The Collector cannot alter the date from
which a partition is to take effect, i. e., the first of July following.

132. {i) Partition shall be not stayed by reason
Appeals in cases of oi any appeal against any order passed

partition. ^y an Assistant Collector other than

an order under section 111.



Jawahir Lai v. Rachpal B. R. 3 of 1S87.



APPENDIX. XXXIX

(2) When a partition-proceeding^ has been sub-
mitted to the Collector for confirmation under section
1 14, he shall proceed, after the expiry of the period
allowed for appeal against a partition proceeding, to
decide all appeals against orders previously passed by
the Assistant Collector, and all appeals against the parti-
tion-proceeding itself, and shall then confirm the parti-
tion-proceeding or pass such other order as he thinks
fit.

{]) When a partition has been submitted to the
Collector for confirmation under section 131, he shall
proceed to decide all appeals against orders of the
Assistant Collector passed since the partition pro-
ceeding was confirmed, and shall then confirm the
partition, or pass such other order as he thinks fit.

This is new. The change in procedure introduced is verj'
important and stands in the way of persons who, desirous of delay-
ing partition, appeal from any and every order of the officer enter-
taing the partition application. This delay is minimised now. A
partition case has two stages, at the conclusion of each of which
it must come before the Collector, who can decide all appeals Appeals,
pertinent to each stage when it reaches him for confirmation. The
first stage leads up to the drawing up of the partition proceeding
under s. 114. All appeals from orders previously passed by the
Assistant Collector are to be dealt with when such proceeding
comes up to the Collector for confirmation. The second stage ends
with the final partition which must be confirmed by the Collector,
and, before doing so that officer has to decide all appeals from
orders passed after the partition proceeding was confirmed. The
partition itself cannot be stayed except on the precept of a Civil
Court under s. in /. e. of the District Judge or the High Court
entertaing an appeal from a decree under s. in. No other Civil
Court can issue an injunction restraining the Collector for making
a partition.^

Appeals from orders made after the confirmation of the parti-
tition proceeding lie to the Collector and not to the District
Judge.-



• Radha Kishen v. Ram Kis/iore, I A. W N. 29.
* Ajud/iia Rai v. Nawal, 7 A. W. N. 185.



Xl APPENDIX.

133. (/) Subject to the provisions of section 112,
^ , an appeal shall lie from the following

Orders appealable. , , r^ ^^ , ^ • r

orders b}' a Collector passed in course of
a partition and from no other such orders : —

(a) Orders under section 109, staying a partition
and quashing proceedings, or disallowing
partition.

{b) Orders under section 114, recording a partition
proceeding.

(c) Orders under section 132 sub-section {2), re-
lating to a partition-proceeding.

{d) Orders under section 132, sub- section (3), re-
lating to the confirmation or otherwise of
a partition.
Appeals (2) An appeal against the decision of the Collector

from orders, confirming a partition under section 1 3 1 shall lie to
the Commissioner of the division within six months
from the date on which such partition takes effect.
Clause (i) is new.

Clause (2) corre!-ponds to s. 132 of Act XIX. of 1873 and s. 92
of Act XVII. of 1876.

The appeals allowed by this section are from certain orders
and not from other orders of a Collector. The Board (Hardy and
Hooper, members) said^ " the provisions of that section (s. 132)
are clearly designed to confine appeals to the vital stages of the
proceedings, and to prevent the delays which occurred when par-
titions were stayed pending the disposals of appeals. An ex-
amination, clause by clause, of s. 133 shows that the same prin-
ciple has been followed. The section provides an appeal from
orders passed by the Collector when he makes the partition himself,
and from the orders he passes when the case is referred by an
Assistant Collector. Taking the clauses in detail —

"Clause (i) (a) relates to original orders, as orders under that
section can only be passed by a Collector.

'' Clause (i) (h) also relates to original orders, as it is only
when he makes the partition himself that he " records'' the parti-
tion proceeding.

Drigpal Singh v Jang Bahadur, B.R 5 of 1905.



APPENDIX. xll

"Clauses (i) (c) and (i) (d) arc somewhat vague in their lang-
uage, but the natural interpretation to be placed upon their lang-
uage, is that they refer to the Collector's orders on the partition
proceeding and the partition, when they are submitted to him for
confirmation.

*' The object of clause {2) of the section now becomes clear.
It provides a special period of appeal against an order confirming
a partition. When the order is one of refusal, the provisions of
s, 214 apply.

" The effect of the provisions under this interpretation will not Appeals
be, as has been argued, to render final certain orders passed by ^''°''" offers.
the Collector, e. ^., orders passed under ss. 126 and 128, but to
prevent appellants taking the cases time after time to the Commis-
sioner in appeal on specific matters. The object of the section is
to focus the appeals so that the case may be disposed of once for
all. Thus, when a partition is being made by the Collector, the
parties must wait until the Collector records the partition
proceeding or confirms the partition, as the case may be. They
can then appeal against the Collector's order and bring forward
any objections they may entertain, but these must be included in a
single appeal. Similarly when the partition is made by an Assistant
Collector, no appeal will lie separately under s. 133 against
appellate orders of the Collector on particular points, but a separate
appeal must be brought against the orders of confirmation, urging
all the objections which may be brought, the Collector's appellate
orders under s. 132(2) and 132(3) being treated as part and parcel
of the orders of confirmation." The last sentence in the judg-
ment was obviously put in to reconcile the actual decision in the
case, viz., that an appeal lies from an appellate order of the
Collector disallowing an objection to the lots prepared by the
partition officer and confirming the partition, with the earlier portion
that s. 133 contemplates appeals from original orders only and
that subclauses (r) and (<?') though loosely worded meant the Collec-
tor's order on the partition proceeding and the partition when
they are submitted to him for confirmation, i.e., original orders.
A more correct way of construing the section would be that appeals
lie from original orders of the Collector under sections 109 and 1 14,
and from the orders on appeals which he must and does decide
before confirming a partition proceeding or a partition ; and from
no other original or appellate order of his, Accepting this
interpretation, it follows that when a Collector himself makes a
partition, only two classes of his orders are appealable, 7-/:., (a)
those under s. 109, staying a 'partition and quashing proceedings,
F



xlii APPENDIX.

or disallowing partition, and (6) those under s. 114, recording a
partition proceeding. None ot his orders passed in respect of
disputes that may arise between the parties as to the various
matters dealt with in sections 115 to 130, is appealable. Nor is the
final partition order.

Subject to the provisions of s, 112, i. e.^ except when the
decision is on a question of proprietary title raised under s. 1 1 1 , in
which case an appeal lies to the Civil Court.

Orders of a Collector. — The restrictive operation of the
section is confined to orders of Collectors. Orders of Assistant
Collectors are open to appeal under the provisions of ss. 210, and
211. Second, except as to matters comprised in clauses (2) and
(3) of s. 132, and third appeals are not permissible.

Clause (2). — Prescribes along period of limitation for appeals
from orders confirming partition.

Of several j^^. When applications for the partition of two

or more mahals belonging to the same
Partition of two or proprietors are made, the Collector

more mahals belong- r t '

ing to the same pro- may procccd to make a partition as
prietors. if the malials in question were a single

mahal.

Such partition shall be made in accordance with the
provisions of the Chapter, so far as they are appli-
cable, and, if possible, in such manner as to allot to
the applicant one or more of the existing mahals.

This is new.

OfCornplex ^^r When a mahal consists of two or more vil-

mahals

Division of com- lages, or portions of villages, the Local
piex mahals. Government may direct its division

into as many mahals as may be necessary for adminis-
trative convenience. On receipt of such direction, the
Collector shall, after considering any representations
made by the proprietors, distribute the revenue of the
whole mahal over the several mahals into which it is
divided in accordance with rules made under section
234, and shall correct the annual registers accordingly.
The mahals so formed shall be severally responsible
for the revenue distributed thereon.
This is new.



APPENDIX. xliii

136. When, ill making a division under the last
Fraudulent orerro- scction OF in making a perfect partition,

neous distribution of the revenue has, owing to fraud or

revenue. , , 1. ., , .

error, been wrongly distributed, the
Board may, within twelve years from the date of an Fraud or
order under section 135 or of confirmation of partition ,.^^^°^ '^

^-^ » distribution

by the Collector, order such a distribution of the reve- of revenue,
nue of the original mahal over the several mahals into
which it is divided as but for the error or fraud would
have been made at the time of partition.

This corresponds to s. 133 of Act XIX. of 1873 'ind s. 93 of
Act XVII. of 1876.

137. The Board may in any case under section „ , , ,

^ ,. , ^, ^ . Refund of

Under-assessed es- '3^ direct that any proprietor whose excess.

tales to refund to mahal has been found to have been

over-assessed estates, , i i n r .

under-assessed shall for each year, not
exceeding three years in all, in which he has held
possession of his separate mahal, be required to pay
to the recorded proprietor of any mahal, which has
been over-assessed, a sum equal to the annual amount
in which the latter shall be found to have been over-
assessed, and in default of payment the amount shall
be recovered as an arrear of revenue and paid to the
proprietor to whom it is due.

No order passed under this section shall be ques-
tioned in any Civil or Revenue Court.

This is new,

138. (/) The partition of taluqdari and under-

Partition of taiuq- Proprietary iiiahals and of mahals held Tal^^dan
dari and under-pro- by lessccs wliose rent has been fixed
prietary mahals &c. ^^^ ^j^^ Settlement oflicer or other

competent authority shall be carried out according to
the provisions of this Chapter, so far as they are appli-
cable.

(2) In the partition of taluqdari mahals all mahals
whether under-proprietary or held by lessees whose
rent has been fixed by the Settlement Officer or other



xliv APPENDIX.

competent authority shall, if practicable, be allotted
to one or other of the new .taluqas to be formed by the
partition.

(j) If such allotment cannot be made the division

shall be made as far as possible by existing sub-divisions,

Taluqdari ^y^^\ q^c\^ portion SO divided off shall be deemed a

separate mahal and the jomt responsibility oi the

co-sharers shall be limited to such portion.

{4) The rent payable on each portion so divided
off shall be fixed by the Collector, and all objections
to the distribution shall be decided by him.

(5j No partition of a taluqdari mahal under this
section shall be proceeded with without the sanction
of the Local Government previously obtained.

This corresponds to s. loo of Act XVII. of 1876.
See rules under s. 107

Union of 139- If two or more revenue-paying mahals form

mahals. portions of the Same village, the pro-

Union of mahals * C5 ^ r

forming part of the prictor may apply to the Collector

same village. ^^^ ^^^^ ^^^^-^^^ ^^ ^j^^ ^^^^^ j^^^^ ^

single mahal, and the Collector may, at his discretion,
grant such application, and in such cases shall correct
the annual registers accordingly.

This corresponds to ss. 136, 137 and 138 of Act XIX. of 1873
and ss. q7 and 98 of Act XVII. of 1876.

140. The provisions of this Chapter, so far as they
r, . . , . are applicable, may, at the discretion

rartilion and union '' •'

of revenue-free ma- of the Collector, be applied to the par.
tition or union of revenue-free mahals.

This corresponds to s. 139 of Act XIX. of 1873 a-"d s. 99 of Act
XVII. of 1876.

Rules made by the Board for guidance wheti a par-
tition is completed [circular 27 — // ) .• —

Rule 31. — The Court shall then so sign or mark the coloured
map that the boundaries of the proposed lots cannot be altered,
and return the record to the officer making the partition for the
preparation of the village papers.



APPENDIX. xlv

Rule 32.— The Court shall at the same time (where the partition Rules of
is a perfect partition) draw up for each mahal a new wajibiilarz Board

in accordance willi tlie provisions of section 84 and 85.

Rule 33. — One set of the new records (including the map) shall
be despatched to the tehsil, while the khaiva and jamabandis will
be made over to the patwaris, and copies of the map, the kheivat
and the wajibulai'z will be made by the patwari for his own use.

Rule 33A. — Wlien necessary, the copy of the partition map
and mahalwar lists of field will be supplied to the canal depart-
ment as referred by rule 17, circular 4 — IV. The cost, which will
be charged to the parlies over and above the partition costs, will
be calculated at the following rates : —

(i) For partition map — 5 annas per 100 numbers (includ-
ing the price of tracing cloth. )
(2) For mahalwar lists of fields— I anna per 50 Ichasra num-
bers.
Rule 34. — The officer making the partition shall also cause
to be erected such boundary marks as the Court may by its order
require, and shall point out to the co-sharers the areas which have
been allotted to them severally or jointly, as the case may be.

Rule 35. — The fact that the provisions of the preceding rule
have been complied with shall be reported to the officer making
the partition, and the report shall be filed with the record.

Rule 36. — A statement shall be drawn up in English in the pres-
cribed form showing the manner in which the area of the original
mahal has been partitioned and the revenue (or rent) thereof
distributed over the mahals or pattis formed by the partition.

Rule 37. — Where the Court making the partition is not the
Collector, this statement shall be forwarded with the record when
it is submitted to the Collector for confirmation of the partition.

Rule 38.— The Court shall keep up with its own hand a brief
record of the course of the proceedings in the case, in which every
order passed will be noted.

Rule 39. —Each partition file will be divided into as many of
the following parts as the nature of the case may require ; —

(a) From the institution of the case to the order allowing or

disallowing partition.
(6) From the ordering allowing the partition to the comple-
tion of the partition proceeding.
(c) From the completion of the partition proceeding to the

submission of tiie detailed proposals for partition.
{d) To the end of the case.



THE LAW OF PARTITION IN ASSAM.



Regulation T. of 1886.



[As amended by Regulations II. of 1889 and II. of 1905.]



CHAPTER I.



Preliminary.



Short title,
commence-
ment and
local extent.



I. (i) This Regulation ma}' be called the Assam
Land and Revenue Regulation, 1886 ; and

(2) It shall come into force on such dates and in
such territories under the administration of the Chief
Commissioner of Assam as the Chief Commissioner,
with the previous sanction of the Governor-General in
Council, may direct by Notification in the local official
Gazette :

Provided that —

(a) any such Notification may declare that any
portion of this Regulation shall not be in
force in any territory to which the Regulation
may be extended ; and
^i?) the Chief Commissioner may, with the previous
sanction of the Governor-General in Council,
direct by Notification in the local official
Gazette that any portion of this Regulation
shall cease to be in force in any territory to
which the Regulation may have been ex-
tended.



APPENDIX. Xlvii

(3)* The Chief Commissioner may, in like manner,
amend, vary, or rescind any Notification issued under
sub-section (2),

The Regulation was brought into force on the ist July, 1886, in
Sylhet, Cachar (except the subdivision of North Cachar), Goalpara,
Kainrup, Darrang, Nowgong, Sibsagar, and Lakhimpur by Noti-
fication No. 12 R., dated 14th April 1886. Certain lands are
excepted from the operation of Chapter II — Vide Section 4.

The Regulation, with the exception of the following portions,
was brought into force on the ist September 1896 in the North
Cachar Hills: —

Chapter III. — Sections 18, 19, 30, 31, 33, clause (2) and clause
(3), so far as that clause relates to the delivery of
an acceptance, and Sections 40 to 42, inclusive.

Chapter T.— Section 65.

Chapter IV. — The whole.
[^Notification No. 4192 /?., dated the 30/A September 1896.]

The Regulation, with the exception of Sections 3 to 159, was
brought into force in the Naga Hills, the Khasi and Jaintia Hills,
and the Garo Hills on the ist April 1897. — [Notification No. 1244/.,
dated the 1st April 1897.]

The Regulation was brought into force in the tract transferred
from the Mokokchang subdivision of the Naga Hills district to
the Sibsagar district as defined in Notification No. 1436 P., dated
the nth April 1901, with effect from the nth April 1901. —
[Notification No. 1443/-, dated nth April 1901,]

2. On and from the date on which this Regulation Repeal.
comes into force in an}" territory, the enactments
mentioned in the schedule hereto annexed, in so far
as they apply to, or are in force in, that territory, and
all Regulations and Rules (if any) in force there relat-
ing to any of the matters provided for by this Regula-
tion, shall be repealed :
Provided that —

(a) this repeal shall not revive any enactment
repealed, or affect anything done, or any
offence committed or any fine or penalty
incurred, or any proceedings commenced,
before this Regulation comes into force ; and

* Added by Act V of 1S97.



xlviii APPENDIX.

{b) all Rules prescribed, appointments and
settlements made, powers conferred and
Notifications published under any enactment
hereby repealed, and all other Rules (if
any) in force on the date on which this
Regulation comes into force relating to any
of the matters hereinafter dealt with, shall
(so far as they are consistent with this
Regulation and could be prescribed, made,
conferred or published thereunder) be deem-
ed to have been respectively prescribed,
made, conferred and published there-
under.
Definitions. 3. In this Regulation, unless there is something

repugnant in the subject or context, —

{a) "the commencement" of this Regulation, used
with reference to any local area, means the
date on which it comes into force in that
local area :

ib) "estate "includes —
(i) any land subject, either immediately or pros-
pectively, to the payment of land revenue,
for the discharge of w^hich a separate en-
gagement has been entered into ;

(2) any land subject to the payment of, or ass-

essed with, a separate amount as land
revenue, although no engagement has been
entered into with the Government for that
amount ;

(3) any local area for the appropriation of the



Online LibraryRam Charan MitraThe law of joint property and partition in British India → online text (page 42 of 58)